Delhi District Court
M/S Shri Shreenivasa Enterprises Pvt ... vs M/S Ajay Electronics on 28 September, 2018
IN THE COURT OF MS. MONA TARDI KERKETTA, ADDL. SENIOR
CIVIL JUDGE-CUM- JUDGE SMALL CAUSE COURT-CUM-
GUARDIAN JUDGE, DISTRICT: SOUTH, NEW DELHI.
CS No. 82264/16
CNR No.DLST03-000005-2014
M/s Shri Shreenivasa Enterprises Pvt Ltd.
C-72, Second Floor, Shivalik,
Malviya Nagar, New Delhi-17,
Through its Director,
Mr. Dinesh Kumar. ....Plaintiff
Versus
1. M/s Ajay Electronics,
I-44, Main Jaitpur Road,
Badarpur, New Delhi-110044,
Through its Proprietor,
Mr. Ajay Kumar Singh.
2. Mr. Ajay Kumar Singh,
S/o Mr. Narendra Singh,
J-130, Sourav Vihar, Jaitpur,
Near Durga Mandir,
Badarpur, New Delhi. ....Defendants
DATE OF INSTITUTION : 23.07.2014
DATE OF RESERVING JUDGMENT: 28.09.2018
DATE OF PRONOUNCEMENT : 28.09.2018
COUNSELS FOR THE PARTIES:-
For the plaintiff : Sh. Sushil Kumar, Adv.
For the defendant : Sh. Anuj Kumar Garg, Adv.
SUIT FOR RECOVERY OF RS. 79,856/-
JUDGMENT
1. The plaintiff has filed the present suit for recovery of Rs. 79,856/- (Rupees Seventy Nine Thousand Eight Hundred & Fifty Six only) along with pendetelite interest @ 18 % per annum against the defendants CS No. 82264/16 M/S SHREENIVASA ENTERPRISES LTD VS. AJAY ELECTRONICS LTD. Page 1 of 14 from the date of filing of the suit till its realization along with cost.
2. The brief facts of the case as disclosed in the plaint are that the plaintiff is a private limited company incorporated under the Companies Act, 1956. The plaintiff company was initially incorporated with the name 'Grade Films Pvt Ltd' on 29.07.1999 and subsequently its name was changed to 'Shri Shreenivasa Enterprises Pvt Ltd" vide approval letter dated 20.09.2004. Sh. Dinesh Kumar is one of the directors of the plaintiff company and duly authorized to sign, file and prosecute the present suit vide resolution dated 01.07.2014. The plaintiff company is a wholesale dealer of electronic goods and acts as distributor of major companies dealing in electronic goods.
3. It is stated that the defendant no. 1 is a sole proprietorship concern and the defendant no. 2 is its sole proprietor. The defendant no. 2 is selling electronic goods as retailers in the name of M/s Ajay Electronics and only responsible person who deals day to day affairs of the defendant no. 1 and is liable to clear the dues of the creditors. In the usual course of business, the defendants have been purchasing electronics goods from the plaintiff on credit basis. As per the ledger accounts of the plaintiff company, an amount of Rs. 1,25,100/- is outstanding towards the defendants. As per the terms of sale, the defendants are liable to pay interest @ 18 % per annum to the plaintiff on failure to pay the price of goods within 30 days.
4. It is further stated that the defendants issued two cheques bearing no. 445178 for Rs 11,250/- and cheque bearing no. 445194 for Rs. 49,000/-, both dated 05.04.2013, both drawn on Oriental Bank of Commerce, Mohan Corp. Ind. Estate, New Delhi. The defendants assured the plaintiff that the cheques shall be honoured on presentation for payment. The plaintiff deposited both the cheques for their collection with its banker but returned dishonoured with remarks "Funds Insufficient"
CS No. 82264/16 M/S SHREENIVASA ENTERPRISES LTD VS. AJAY ELECTRONICS LTD. Page 2 of 14vide return memos dated 09.04.2013. Despite repeated requests, the defendants did not make the payment. A legal notice dated 24.04.2013 was served upon the defendants on 01.05.2013. Despite service of legal notice, the defendants did not make the payment, hence committed an offence punishable U/s 138 NI Act. The plaintiff recovered the partial amount of two invoices for a sum of Rs. 60,750/- against above said two cheques but the amount of two invoices for a sum of Rs. 64,400/- is due till date. Hence, the present suit.
5. The plaintiff has prayed to pass the following reliefs in favour of plaintiff and against the defendants :-
(a) A decree of Rs. 79,856/- ( Rs. Seventy Nine Thousand Eight Hundred and Fifty Six, inclusive of 18% interest due for 16 months(17.04.2013 to 10.07.2014) along with pendetelite and future interest @ 18 % per annum against the defendants from the filing of the suit till its realization.
(b) Cost of the suit;
(c) Any other orders as this Hon'ble Court deems fit and proper
in the facts and circumstances of the case.
6. The defendants contested the present suit by filing the written statement on the following grounds:
(a) The plaintiff has no locus standi, right, title or authority to file and maintain the present suit as it has no connection whatsoever with the present suit in any manner.
(b) The plaintiff has not approached this Hon'ble Court with clean hands and suppressed the true and material facts and therefore is not entitled for any discretionary relief.
(c) The present suit in the present form is not maintainable and liable to be rejected under the provisions of Order 7 Rule 11 CS No. 82264/16 M/S SHREENIVASA ENTERPRISES LTD VS. AJAY ELECTRONICS LTD. Page 3 of 14 CPC.
(d) The present suit is not maintainable as no notice was ever given to the defendants.
(e) The plaintiff has no cause of action to file and maintain the present suit.
(f) The present suit is barred under the provisions of the Limitation Act.
(g) The present suit is barred by law being misjoinder and non-
joinder of parties.
(h) The suit of the plaintiff is undervalued and proper court fees has not been paid as payable under the Court Fees Act on the total suit value.
(i) The present suit has been filed against the proprietorship concern which is not tenable in the eyes of law and thus the present suit is liable to be dismissed with heavy costs.
(j) The plaintiff has intentionally and deliberately not filed all the ledger and invoices and payment made thereof. The plaintiff used to collect the cheques against the payment and later on returned those cheques on receiving the cash amount. The cheques used to be filled by the employee of the plaintiff namely Sh. Sanjay Nanda.
(k) The payment against invoice no.W-11 dated 19.09.2012 of Rs.10,400/- was paid in cash on return of cheque of Rs.21,800/- dated 05.11.2011 and Rs.11,250/- in complaint filed under Section 138 N.I. Act along with two other bills amounting to Rs.13,200/- and Rs.9,400/- both dated 29.09.2012. Similarly, in case of invoice no.B-143 dated 27.10.2012 of Rs.50,300/-, the discount of Rs.600/- was CS No. 82264/16 M/S SHREENIVASA ENTERPRISES LTD VS. AJAY ELECTRONICS LTD. Page 4 of 14 given which was later on increased to Rs.800/-. Thereafter, cheque of Rs.49,700/- was changed to cheque of Rs.49,500/-. This fact is mentioned on the copy of the invoice of the defendants and duly acknowledged by Sh. Sanjiv Nanda. The said cheque amount has been duly received by the plaintiff in the complaint case filed under Section 138 NI Act.
(l) In case of invoice no.V174 dated 07.11.2012 of Rs.5,777/-
payment was made in cash to the plaintiff. Similarly, in case of invoice no.V202 dated 11.11.2012 of Rs.35,400/- payment was made in cash to the plaintiff. The ledger account in copy of invoices having acknowledgment of Sh. Sanjiv Nanda are annexed.
(m) The ledger account filed by the plaintiff is forged and fabricated document.
(n) The plaintiff has no claim and all the payments has already been received by the plaintiff and nothing is due against the defendant.
(o) The suit of the plaintiff may be dismissed with heavy cost.
7. Replication to the written statement on behalf of defendants was filed which is essentially a reiteration of averments in the plaint and denial of contentions in the written statement. In addition, the plaintiff submitted the following arguments:-
(a) The present suit is filed against both the proprietorship firm and proprietor of the firm.
(b) There is no need to file all invoices because all the payments were made by the defendant except the four invoices in question. In case payment was made in cash by the CS No. 82264/16 M/S SHREENIVASA ENTERPRISES LTD VS. AJAY ELECTRONICS LTD. Page 5 of 14 defendants, the plaintiff would have issued cash receipt against the said payments. No cash receipt has been placed by the defendants on record.
(c) The plaintiff issued cash receipt against all the payments made in cash from the defendant and all entries are reflected in the ledger account. The plaintiff received only a sum of Rs.10,400/- against invoice no.W11 dated 29.09.2012 of Rs.10,400/- in complaint case filed under Section 138 NI Act.
8. After completion of pleadings, the following issues were framed on 25.04.2017:-
1. Whether the plaintiff is entitled to decree for recovery of Rs.79,856/-? OPP
2. Whether the plaintiff is entitled to an interest, if so at what rate? OPP
3. Whether the suit of the plaintiff is barred by limitation period?OPD
4. Whether the suit has been filed by an authorized person? OPD
5. Whether the suit has been properly valued?
OPD
6. Relief.
9. Subsequent thereto, the matter was fixed for plaintiff evidence. In order to prove the case, the plaintiff examined Sh. Dinesh Kumar, Director of the plaintiff company as PW-1, who tendered his examination-in-chief by way of affidavit, which is Ex.PW1/A, bearing his signatures at point A and B and also relied upon the following documents:
CS No. 82264/16 M/S SHREENIVASA ENTERPRISES LTD VS. AJAY ELECTRONICS LTD. Page 6 of 14(1) Ex.PW-1/1: Certified copy of the certificate of incorporation dated 29.07.1999.
(2) Ex.PW1/2: Certified copy of the approval letter dated 20.09.2004 for change of name of the plaintiff company.
(3) Ex.PW-1/3: Original Resolution dated 20.04.2013.
(4) Ex.PW-1/4 to Ex.PW-1/7: Certified copy of office copy of 04 Invoices of Rs.1,25,100/-.
(5) Ex.PW-1/8: Certified copy of Statement of account/ ledger account maintained in the name of the defendants showing balance of Rs.125,000/-.
(6) Ex.PW-1/9 and Ex.PW-1/10: Certified copy of cheques.
(7) Ex.PW-1/11 and Ex.PW-1/12: Certified copy of Cheque returned memos both dated 09.04.2013.
(8) Ex.PW-1/13 and Ex.PW-1/15: Certified copy of demand notice dated 24.04.2013 and postal receipts.
(9) Ex.PW-1/16 and Ex.PW-1/17: Certified copy of Postal articles.
(ii) Ex.PW-1/18: Plaint bearing signatures of the director of the plaintiff company at point A & B.
10. PW-1 was duly cross examined by Ld. counsel for the defendants. The plaintiff evidence was closed on 15.01.2018 on the statement of Director of the plaintiff company.
11. Subsequent thereto, the matter was fixed for the defendant evidence. In order to prove the defences taken, the defendants examined Sh. Ajay Kumar, defendant no.2 as DW-1, who tendered his examination- in-chief by way of affidavit, which is Ex.DW1/A, bearing his signatures at point A and B and also relied upon the following documents:
CS No. 82264/16 M/S SHREENIVASA ENTERPRISES LTD VS. AJAY ELECTRONICS LTD. Page 7 of 14 (1) Ex. DW1/1: Original cheque no. 445173.
(2) Ex. DW1/2: Original cheque no. 112402.
(3) Ex. DW1/3: Original cheque no. 112403.
(4) Ex. DW1/4: Original cheque no. 127838.
(5) Ex. DW1/5: Original cheque no. 112407.
(6) Ex. DW1/6: Original cheque no. 127835.
(7) Ex. DW1/7: Original Invoice bearing no. V104 dated
29.09.2012.
(8) Ex. DW1/8: Original Invoice bearing no. W11 dated
29.09.2012.
(9) Ex. DW1/9: Original Invoice bearing no. G0497 dated
29.09.2012.
(10) Ex. DW1/10: Original Invoice bearing no. G0500 dated 21.10.2012.
(11) Ex. DW1/11: Original Invoice bearing no. W13 dated 21.10.2012.
(12) Ex. DW1/12: Original Invoice bearing no. V136 dated 21.10.2012.
(13) Ex. DW1/13: Original Invoice bearing no. V143 dated 27.10.2012.
(14) Ex. DW1/14: Original Invoice bearing no. G0503 dated 28.10.2012.
(15) Ex. DW1/15: Original Invoice bearing no. W16 dated 01.11.2012.
(16) Ex. DW1/16: Original Invoice bearing no. V174 dated 07.11.2012.
CS No. 82264/16 M/S SHREENIVASA ENTERPRISES LTD VS. AJAY ELECTRONICS LTD. Page 8 of 14(17) Ex. DW1/17: Original Invoice bearing no. V202 dated 11.11.2012.
(18) Ex. DW1/18: Original Invoice bearing no. V203 dated 11.11.2012.
(19) Mark-A: Copy of ledger prepared during transaction with the plaintiff.
12. Subsequent thereto, the matter was fixed for final arguments, which were heard conclusively on 17.09.2018 on behalf of the defendants. The plaintiff did not turn up to address the arguments therefore, the court proceeded to dispose off the suit on the basis of materials available on record. After hearing the final arguments, the matter was fixed for pronouncement of judgment.
13. The defendants submitted the following arguments :-
(a) The plaintiff has filed a false and frivolous matter against the defendants on the false facts.
(b) It is admitted by the plaintiff in the cross-examination that the document Ex.PW-1/2, Ex.PW-1/4 to Ex.PW-1/18 were never been produced in original and the same are mere copy. Hence, the said documents are not duly proved through primary evidence; the plaintiff has been suggested that the plaintiff is not a duly incorporated company and PW-1 is not the director of the plaintiff company.
(c) It is further admitted that the plaintiff company has relied only on the four bills Ex.PW1/4 to Ex.PW1/7 to raise the claims against the defendants which are computer generated copy and the accounts are not maintained by the PW-1.CS No. 82264/16 M/S SHREENIVASA ENTERPRISES LTD VS. AJAY ELECTRONICS LTD. Page 9 of 14
(d) It is further admitted that the document Ex.PW1/16 is also a computer generated copy and not generated by the PW-1.
(e) Defence of the defendant was neither put nor suggested in the cross-examination which amounts to admission on the part of the plaintiff.
(f) Mere marking or exhibiting the document does not amount to proving the document; filing of certificate under section 65-B of Evidence Act in respect of electronic documents is a must;if the version of the witness as stated in examination-in-chief is not challenged the same amounts to admission.
(References: VIII (2015) SLT 501; 235-2016 DLT 375; V(2017) SLT 681; AIR 2015 SC 180;Muddasani Venkata Narsaiah Vs. Muddasani Sarojana bearing civil appeal no.4816 of 2016)
14. Issue-wise findings of the court are as under:-
ISSUE No.3: Whether the suit of the plaintiff is barred by limitation period?OPD AND ISSUE NO.5: Whether the suit has been properly valued? OPD
15. Issue No.4&5 are being dealt with first being legal issues. The onus to prove these issue was fixed upon the defendants. It is argued by the plaintiff that the suit is within the period of limitation as it has been filed within three years of balance due in the books of accounts and raised invoices of November 2012 & the suit of the plaintiff is undervalued. Whereas, the defendants have claimed that the suit of the plaintiff is barred by limitation period and the suit has been valued properly and CS No. 82264/16 M/S SHREENIVASA ENTERPRISES LTD VS. AJAY ELECTRONICS LTD. Page 10 of 14 requisite court fees has been filed.
16. It is on record that the defendants have not explained as to how the suit of the plaintiff is barred by limitation and is undervalued. In the written statement, the defendants have merely stated that the present suit is barred under the provisions of the Limitation Act and the suit is undervalued and no proper court fees has been paid as prescribed under the Court Fees Act. The defendants have not led any evidence to show that the suit of the plaintiff is barred by limitation and the suit is not properly valued for the purpose of court fees and jurisdiction.
17. It is observed that the plaintiff witness has deposed in consonance with the aforesaid arguments in respect of the limitation period and proper valuation of the present suit as per the Court Fees Act. However, the defendants have not cross-examined the plaintiff witness on the aspects of limitation period and Court Fees Act, therefore, the version of the plaintiff is deemed to be accepted as true and correct by the defendants. It is on record that the present suit has been filed on basis of balance due as mentioned in the books of account and invoices raised in the month of November, 2012 and the suit was filed in July, 2014, therefore, the suit of the plaintiff is found filed within limitation period. The suit amount is within the pecuniary jurisdiction of the court and the plaintiff has affixed proper and requisite court fees of Rs. 1325/-.
18. Accordingly, the aforesaid issues are decided in favour of the plaintiff and against the defendants.
ISSUE NO.4: Whether the suit has been filed by an authorized person?OPD
19. Issue No.4 is now being dealt being one of the another legal issues. The onus to prove this issue was also fixed upon the defendants. It is stated in the plaint that Sh. Dinesh Kumar is one of CS No. 82264/16 M/S SHREENIVASA ENTERPRISES LTD VS. AJAY ELECTRONICS LTD. Page 11 of 14 the directors of the plaintiff company and duly authorized to sign, file and prosecute the present suit vide resolution dated 01.07.2014. The Board Resolution dated 01.07.2014 has been exhibited by the plaintiff as Ex.PW-1/3 to support the aforesaid contentions. On perusal of the document Ex.PW-1/3 shows that Chairman/Director of the company had authorized Sh. Dinesh Kumar to sign , verify and file any pleadings, to engage counsel, to give notice etc. to file the complaint under section 138 N.I.Act and not to institute the present suit.
20. The plaintiff has not filed on record its memorandum/articles to show that the Chairman/Director of the company had been vested with the powers to do so on behalf of the company. Moreover, it has not been averred in the plaint nor sought to be proved that any resolution had been passed by the Board of Directors of the plaintiff company authorizing Sh. Dinesh Kumar to sign, verify and institute the present suit. Similarly, it has not been averred or proved that the memorandum/articles of the plaintiff company gave any right to Sh. Dinesh Kumar to sign, verify and institute the present suit on behalf of the plaintiff company. The plaintiff company has not summoned any witness from the office of the ROC to prove that Sh. Dinesh Kumar is one of the directors of the company and the minutes book of the company has also not been produced to prove the appointment of Sh. Dinesh Kumar as one of the directors of the company.
21. It is on record that in cross-examination, PW-1 has admitted that the resolution dated 20.04.2013 Ex.PW-1/3 is the original copy and except this including meeting books, no other record is either maintained or is in the possession of the plaintiff; the resolution dated 20.04.2013 was prepared two-three days prior to CS No. 82264/16 M/S SHREENIVASA ENTERPRISES LTD VS. AJAY ELECTRONICS LTD. Page 12 of 14 passing of resolution as mentioned in Ex.PW-1/3 but the same was signed on 01.07.2014. Thus , it is proved on record that the plaintiff has not produced any evidence to prove that Sh. Dinesh was duly authorized to institute the present suit.
Accordingly, Issue No.4 is decided in favour of the defendants and against the plaintiff.
ISSUE No.1: Whether the plaintiff is entitled to decree for recovery of Rs.79,856/- ? OPP AND ISSUE No.2: Whether the plaintiff is entitled to an interest, if so at what rate? OPP
22. The onus to prove these issue was fixed upon the Plaintiff. It is well settled that the contents of documents must be proved either by primary or secondary evidence. Section 62 of Evidence Act provides that the documents itself are produced for the inspection of the court. Section 63 of the Act provides that Secondary Evidence means and includes certified copies given under the provisions.
23. In the present suit, the plaintiff has exhibited certified copies of all the documents except the document Ex.PW-1/3 which is Board Resolution. In cross-examination, plaintiff's witness has admitted that documents Ex.PW-1/2, Ex.PW-1/4 to Ex.PW-1/18 are certified copies and their originals were not produced before the Court. Similarly, the four bills Ex.PW-1/4 to Ex.PW-1/7 the basis of the suit amount are also certified copies. The said documents are computer generated documents and used to be maintained admittedly by the accountant of the company and not by PW-1. The document Ex.PW-1/16 is also a computer generated document. It is CS No. 82264/16 M/S SHREENIVASA ENTERPRISES LTD VS. AJAY ELECTRONICS LTD. Page 13 of 14 on record that the plaintiff has made no compliance of Section 65-B of Indian Evidence Act in support of the said computer generated documents. The plaintiff was required to get summoned the judicial file of the complaint case filed under section 138 NI Act where original documents are stated to be lying and also to examine the accountant of the company who generated and maintained the aforesaid documents in the computer and by filing section 65-B certificate. It is further on record that the defences taken by the defendants has not been controverted by the plaintiff either through cross-examination or by leading rebuttal evidence. In the absence of such evidences, the plaintiff has not been able to discharge the onus to prove its case. The issues in hand are accordingly decided against the plaintiff and in favour of the defendants.
Relief:
24. In view of the findings on the issues framed and the fact that the substantive issues have been decided in favour of the defendants, the suit of the plaintiff is dismissed.
25. The parties shall bear their own costs
26. Let decree sheet be prepared accordingly.
27. File be consigned to Record Room after compliance of necessary formalities.
(Mona Tardi Kerketta) JSCC-cum-ASCJ-cum-GJ South District, Saket Courts, New Delhi.
Announced in the open Court today i.e 28th September, 2018.
CS No. 82264/16 M/S SHREENIVASA ENTERPRISES LTD VS. AJAY ELECTRONICS LTD. Page 14 of 14